# Miyashiro v. Roehrig, Roehrig, Wilson > Hawaii Intermediate Court of Appeals · March 23, 2010 · 122 Haw. 461 URL: https://www.frixlaw.com/law-library/cases/871041 ## Case - **Full name:** George MIYASHIRO, Plaintiff-Appellant, v. ROEHRIG, ROEHRIG, WILSON & HARA; Stanley H. Roehrig, Attorney at Law, ALC; Glenn Hara, Attorney at Law; Carol Miyashiro; Troy Miyashiro; Title Guaranty Co.; And Doe Defendants 1-100, Defendants-Appellees - **Court:** Hawaii Intermediate Court of Appeals - **Decided:** March 23, 2010 - **Citations:** 122 Haw. 461; 228 P.3d 341; 2010 Haw. App. LEXIS 286 - **Precedential status:** Published - **Opinion:** Opinion by Leonard - **Judges:** Foley, Leonard, Trader, Nakamura, Fujise - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/871041 ## How later opinions describe it (automated extraction) - applying § 551 Restatement standard ## Opinion text FOR PUBLICAT!ON IN WEST'S I~LAWAI‘! REPORTS AND PACIFIC REPORTER lN THE lNTERMEElATE COURT 0F APPEALS or THE sTATE or HAWA:‘: -~-o0o--- Plaintiff-Appellant, v. ROEHRIG, ROEHRlG, WILSON & HARA; STANLEY H. ROEHRlG, Attorney at Law, ALC; GLENN HARA, Attorney at Law; CAROL MIYASHlRO; TROY MIYASHlRO; TlTLE GUARANTY and DOE DEFENDANTS l-l00, Defendants~Appellees GEORGE MlYASHlRO, CO.i NO. 28395 THE»ClRCUlT COURT OF THE THlRD ClRCUlT APPEAL FROM (ClVlL NO. 04~l-2ll) `H MARCH 23, 2010 FOLEY, PRES:D:NG JUD - fl element of §his or] her case with respect to s a which [he orj she has the burden of proof. Exotics Hawai‘i-Kona, lnc. v. E.l. Du Pont de Nemours & Co., ll6 Hawaid_277, 302, l72 P.3d l02l, l046 (2007) (citations, internal quotation marks, brackets, and ellipses omitted}. "The trial court's grant or denial of attorney‘s fees and costs is reviewed under the abuse of discretion standard." Sierra Club v. Dep't of Transp. of the State of Hawafi, l20 HawaiT.l8l, l97, 202 P.3d l226, l242 (2009) (citations and brackets omitted). lV. DlSCUSSlON A. Albertini's Pro Hac Vice Status George argues that the Circuit Court abused its discretion when it arbitrarily denied Albertini "full" pro hac vice status on September l9, 2006.¥V George argues that Albertini should have been granted full pro hac vice status because Albertini: (l) is a California attorney in good standing; (2) is George's attorney of choice; (3) had already been granted partial pro hac vice status by the Circuit Court; and (4) was already intimately familiar with George's case. George does not, however, explain what exactly he means by "full" pro hac vice counsel status. ln his opening brief, £/ ln his points of error, George references all three pro hac vice orders, but he only presents argument related to the Circuit Court‘s ruling on George's August 28, 2006 renewed motion to allow Albertini to appear as counsel pro hac vice with full status. Points not argued may be deemed waived. HawaiYi Rules of Appellate Procedure (HRAP) Rule 28(b)(7). Moreover, in light of George’s stipulation to the limitations set forth in the Circuit Court‘s September l, 2005 order granting in part and denying in part George's second motion to allow Albertini to appear as counsel pro hac vice, any objection to the Circuit Court‘s first two rulings on Albertini's pro hac vice status was either mooted or waived. 23 FOR PUBLICATION IN W’EST'S H.A\VAI‘I REPORTS AND PACIFIC REPORTER George states, "Gierlach did not have the time or inclination to be primary counsel in this case." in his August 23, 2036 renewed motion to the Circuit Court, George argued that he has a constitutional right to "counsel of choice" with "full standing." Apparently, George contends that it was an abuse of the Circuit Court‘s discretion not to grant Albertini the same rights, privileges, and responsibilities of a Hawai‘i~iicensed attorney, for the purposes of his representation of George in this case. We disagree. ln Hawaifi, pro hac vice status is governed by RSCSH Rule l.9 (emphasis added): Any attorney actively licensed to practice law by the highest court of a state or territory of the United States or the District of Columbia who is not a resident of Hawafi gay be permitted to associate himself or herself with a member or members of the Hawafi bar in the presentation of a specific case at the discretion of the presiding judge or judges. Rule l.9 includes no mandate for unlimited admission to practice pro hac vice before Hawafi courts. lnstead, Rule l.9 provides a presiding judge with the discretion to allow an out- of-state licensed attorney to associate himself or herself with a Hawafi-licensed attorney in a particular case. Rule l.9 permits pro hac vice counsel to practice only in association with a HawaFi-licensed attorney. HawaiT.courts commonly allow pro hac vice admission subject to continuing conditions, such as requiring the HawaiFi-licensed attorney to serve as lead counsel and to meaningfully participate in the case, and specifying that all service be made on the Hawafi-licensed attorney, rather than requiring opposing parties to send court filings and discovery papers to the mainland counsel. See, e.g., Bank of Hawaii v. Kunimoto, 91 HawaiH_372, 376, 394, 984 P.2d ll98, l202, 1220 (l999) (circuit court granted pro hac vice application on the conditions that: (l) there shall be meaningful participation by local counsel; (2) service shall be on local counsel; and (3) 24 FOR PUBLICATION IN W'EST'S HAWAI‘I REPORTS AND PACIFIC REPORTER local counsel shall at all times remain lead counsel; supreme court affirmed further conditions upon any future reguest for prc hac vice admission). Before further examining George's argument that the Circuit Court abused its discretion in retaining the agreed-upon limitations on Albertini's pro hac vice admission, we consider the Hawaid_Supreme Court's review of this very issue. ln its order denying George’s petition for a writ of mandamus, the supreme court ruled that Judge Masuoka did not commit a "flagrant and manifest abuse of discretion." The supreme court concluded: {l]t appears that there is no federal or state constitutional right to pro hac vice appearance of counsel before any HawaiU.state court. See Bank of Hawaii v. Kunimoto, 9l HawaiU_372, 388, 984 P.2d ll98, l2l4 (l999). Granting Eugene Albertini full pro hac vice status in Civil No. 04-l-02ll was within the discretion of the circuit judge, see RSCSH l.9, and the refusal to do so for the reasons for which pro hac vice appearance was initially denied was not a flagrant and manifest abuse of discretion. Neither party addresses the distinction between the flagrant-and-manifest-abuse-of-discretion standard applied by the supreme court on a petition for writ of mandamus and the abuse- of-discretion standard applied on direct appeal, or whether principles of stare decisis or collateral estoppel dictate our conclusion. ln any case, we find the supreme court's reasoning to be compelling and applicable to George's contention that the Circuit Court abused its discretion. ln light of the facts and circumstances of this case, particularly George's prior agreement to the limited representation and the concerns articulated in the first instance by Judge lbarra and reiterated by Judge Masuoka at the September 28, 2006 hearing, we conclude that the Circuit Court did not abuse its discretion in denying Albertini full pro hac vice counsel status.Y/ E/ Nor would it be an abuse of discretion for the Circuit Court to consider a more limited request to allow Albertini to participate as (continued...) 25 FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER B. Summarv Judgment in Favor of Title Guaranty The Complaint sets forth a single breach-of-contract claim against Title Guaranty. in addition to incorporating by reference the factual allegations of the Complaint, Count Vll states: Defendant Title Guaranty Co. entered into a contract with Plaiatiff in which Defendant Title Guaranty agreed to act only consistent with instructions given by Plaintiff. Title Guaranty breached its contractual obligations owed to Plaintiff and as a direct and proximate result, Plaintiff has sustained substantial pecuniary damages in an amount to be proved at trial. George argues that the Circuit Court erred when it entered summary judgment in favor of Title Guaranty and against George because there were genuine issues of material fact in dispute. George argues, in part, that there is "no doubt" that Title Guaranty breached its duty to George, as a party to the escrow, when Title Guaranty delivered the Jack's Tours stock certificates to Roehrig as directed in Roehrig's October 7, l998 "supplemental escrow instruction." However, before we consider the issue of Roehrig's supplemental escrow instruction, we must more specifically identify Title Guaranty's contractual duty to George. lt is undisputed that the subject contract is embodied in the escrow instructions prepared and signed by the parties to the 97-402 and 97-471 settlements, as set forth in Section l.B. above, and the additional terms set forth in the Tentative Buyer's Statement, which was also signed by George. The parties‘ escrow instructions (at I 7) create a duty for Title Guaranty to deliver the stock certificates to George, but do not specify an address for delivery. The Tentative Buyer's Statement identifies George's address as being in care of Roehrig. George does not deny that he received and executed the Tentative Buyer's iW(...continued) associated pro hac vice counsel in the trial proceedings upon the remand of this case. 26 FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER Statement. The uncontroverted evidence is that the only address for George ever provided to Title Guaranty was in care of Roehrig. George has failed to make a showing sufficient to establish the existence of an element essential to his case, i.e., that Title Guaranty had a contractual duty to deliver the stock certificates to him other than in care of Roehrig. §ee, e.g., Exotics HawaiU, ll6 Hawafi at 301-02, l72 P.3d at l046 (describing the burden of the nonmoving plaintiff on a summary judgment motion). Simply put, George has failed to bring forward evidence that Title Guaranty breached its duty under the terms of the escrow agreement. As stated by the supreme court in Exotics Hawafi, "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." ld; Here, George's complete failure of proof concerning an essential element of his breach-of-contract claim renders immaterial the disputed facts regarding Roehrig's allegedly unauthorized supplemental escrow instruction and whether Title Guaranty accepted Roehrig's supplemental instruction.Y/ For these reasons, we conclude that the Circuit Court did not err when it entered summary judgment in favor of Title Guaranty and against George. C. Roehrig's Motion for Summarv Judgment on the Hawafi Rules of Professional Conduct As reported above, the Complaint includes six causes of action in which George seeks relief from Roehrig. Roehrig's £/ George's failure of proof concerning his contract claim also renders immaterial, with respect to George‘s claim against Title Guaranty, the issue of whether the stock transfer restrictions contained in the Bylaws and/or Articles of Incorporation of Jack's Tours prevented the transfer of shares from Raymond to George absent the consent of the directors of Jack's Tours. Therefore, we need not address this issue in the context of the summary judgment entered in favor of Title Guaranty. The Bylaws issue was also the subject of one of Roehrig's summary judgment motions and, therefore, is addressed in that context in Section lV.D. below. 27 FOR PUBLICATION IN WEST'S HAW'AI°I REPORTS AND PACIFIC REPORTER summary judgment motion on the HRPC did not seek summary judgment by reference to any particular cause of action. lnstead, in this motion, Roehrig primarily argued: fn order to achieve George‘s objective of Raymond’s trust surrendering its shares of stock in Jack’s Tours, lnc., it was necessary for George to obtain Carol‘s consent to the share transfer, As George's attorney, Roehrig had to communicate with Carol in order to obtain her consent to the transfer of Raymond's trust’s sharcs. Accordingly, under the HRPC, Roehrig‘s communication with Carol was impliedly authorized by George in order for Roehrig to carry out his representation of George and settle the Castroverde lawsuit. This part of Roehrig's argument is made in connection with HRPC Rule l.6(a), which provides: A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b} and (c). Roehrig contends that all of his communications with Carol were "impliedly authorized" under HRPC Rule l.6(a) because he needed to obtain Carol's consent in order to achieve George's objective of the Raymond Trust surrendering its shares of stock, and to settle the lawsuits with Raymond. First, there is a genuine issue of material fact regarding whether George’s objective was for George to gain control of Jack's Tours in conjunction with the settlement of the lawsuits, or simply to divest Raymond of any continuing interest in Jack's Tours in conjunction with the settlement of the claims that George engaged in wrongdoing. Second, as detailed in Section I.D. above, Roehrig's communications with Carol went beyond seeking her consent to the stock transfer set forth in the 97-402 and 97-471 settlement agreements. Certainly no later than July 29 or 30, l998, when Carol expressly and repeatedly informed Roehrig and Hara that she would not consent to the transfer of the shares of stock in Jack's Tours on the terms that George had understood and agreed to - i.e., Raymond's stock would be transferred to George - 28 FOR PUBLICATION IN \VEST’S HAWA[‘I REPORTS AND PACIFIC REPORTER a genuine issue of material fact exists as to whether Roehrig's communications were impliedly authori2ed. ln the face of a potentially game-changing development in an attorney's representation of a client, such as Carol's change-of-mind as to her consent, the "implied authorization" provision in HRPC Rule l.6(a) must be analyzed in conjunction with other relevant provisions of the HRPC and the attorney‘s substantive legal duties. ln this case, for example, HRPC Rule l.6(a) should be considered in light of HRPC Rule l.4, which provides: Rule l.4. Communication. , (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. . . (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. ln other words, even when a disclosure of information may be impliedly authorized in the first instance, that authorization may be subject to limitations, and may give way to other duties, such as the duty to keep the client reasonably informed, reasonably advised, and in the decision-making role, including with respect to the means by which objectives are pursued. §ee al§Q HRPC Rule l.2(a) ("A lawyer shall abide by a client‘s decisions concerning the objectives of representation, subject to [certain limitations], and shall consult with the client as to the means by which the objectives are to be pursued.") ln this case, there is evidence in the record that Roehrig's communications revealed not only the fact of and terms of the proposed settlements in advance of Carol's initial consent. After Carol took a position that was adverse to George, Roehrig further informed Carol of information related to Roehrig’s representation of George such as the source of funds, the proposed escrow instructions, and strategic information and/or advice as to the advisability of seeking to amend the settlements that were put on the record in 97-402 and 97-47l versus closing the transaction 29 FOR PUBLICATI()N IN WEST’S HAWAI‘I REPOR'I`S AND PACIFIC REPORTER with Raymond and then working out a different distribution of the shares of stock. There exists a genuine issue of material fact as to whether Roehrig's communications with Carol were impliedly authorized pursuant to HRPC Rule l.6(a).5V in his summary judgment motion on the HRPC, Roehrig further argued that neither of the two March l999 affidavits that he filed in 97-402, in support of his motion for leave to deposit stock certificates with the Circuit Court, violated HRPC Rule l.6. Roehrig's motion to deposit the stock followed George's motion to enforce the settlement agreement, which sought an order that the stock be turned over to George. kin these affidavits, Roehrig disclosed the details of his purported separate agreements with George and Carol ~ i.e., that Roehrig would act as a stakeholder for the Jack's Tours stock certificates ~ including the substance of his alleged conversations with George. Roehrig claimed, inter alia, that his first affidavit (dated March l9, l999) did not disclose any privileged attorney-client communications, and that his second affidavit (dated March 30, l999) followed an affidavit executed by George, which purportedly disclosed some of their attorney-client communications, thereby waiving George‘s privilege in advance of Roehrig's second affidavit. ln opposition to the motion for summary judgment, George argued that Roehrig's affidavits in support of his March l999 request to deposit the stock certificates with the Circuit Court were simply the final act in what George alleges was a breach of Roehrig's common law duties to George including, inter alia, that Roehrig breached his duty of loyalty to his client and that Roehrig's representation of George fell below the reasonable standard of care, skill, and diligence which must be exercised by an attorney. We agree that Roehrig's affidavits were the last B/ Accordingly, at this point, we need not delve into George's argument that the communications with Carol were unnecessary because her consent was unnecessary. 30 FOR PUBLICA'I`ION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER manifestation of Roehrig's refusal to turn the stock certificates over to George. Thus, Roehrig's statements were potentially relevant to breaches other than the alleged breaches of confidentiality. We also agree, however, with the Circuit Court‘s analysis that statements made by Roehrig in his March 30, l999 affidavit in response to George's March 27, l999 affidavit were not in violation of George‘s attorney-client privilege or HRPC Rule l.6(a) because George waived his privilege in furtherance of his attempt to gain possession of the stock certificates from Roehrig. Thus, Roehrig's affidavit disclosures were not in violation of the HRPC confidentiality duty. §§e HRPC Rule l.6(c)(3). Additionally, Roehrig claimed that his testimony during a preliminary injunction hearing in 99~l5l did not violate HRPC Rule l.6(a) because Judge Nakamura ruled in that case that George had waived his privilege, and Judge Nakamura ordered Roehrig to testify. On this point, we agree that summary judgment was properly granted in part. HRPC Rule l.6(c)(6) provides that: A lawyer may reveal information relating to representation of a client to the extent the lawyer reasonably believes necessary: l6l - to comply with other law or court order. Thus, Roehrig's hearing testimony pursuant to the order of Judge Nakamura was within the exception set forth in HRPC Rule 1.6.-@"¢/ 3- As there has been substantial argument presented to Circuit Court and on appeal regarding the effect of Judge Nakamura's rulings in 99-l5l, we want to be clear that this conclusion is based on the fact that Judge Nakamura's order that Roehrig testify excused Roehrig from his obligation to maintain the confidentiality of George's representation~related information at the hearing before Judge Nakamura. This conclusion is not based on collateral estoppel or any other preclusive doctrine. The supreme court has held: ln order to establish a claim of collateral estoppel, the party asserting the claim has the burden of establishing that: (l) The issue decided in the prior adjudication is identical to the one presented in the action in guestion; (2) there is a final judgment on the merits; (3) the issue (continued...) 31 FOR PUBLICATION lN WEST'S HAVVAI‘I REPORTS AND PACIFIC REPORTER Finally, we conclude that many of the allegations set forth in the Complaint, if proven at trial, could be construed as actions in violation of the HRPC. As detailed in the report from George's expert, Professor Randall Roth, and as set forth in letters dated August 16 and September 25, 2006, there was evidence in the record that, inter alia: {1) there was personal animosity and legal adversity between George and Carol, including open legal questions about claims Carol was making to George’s property, including stock in Jack's Tours; (2) Roehrig divulged confidential information to Carol without George's consent, and arguably provided legal advice to Carol that adversely affected George; (3) Roehrig refused to deliver the stock certificates to George, notwithstanding George‘s repeated demands, even writing a memo to Hara stating, "make sure we keep our hands on shareS;" (4) Roehrig caused George and Carol to believe that George could not vote the Jack's Tours shares, if Roehrig held them; (5) prior to and after Roehrig's withdrawal from representation of George, he continued to communicate with Carol, without George's consent, and sometimes without George's knowledge. Professor Roth opined that Roehrig violated Rules 1.1, 1.2,`1.3, 1.4, possibly 1.6, 1.7, probably §/(...continued) decided in the prior adjudication was essential to the final judgment; and (4) the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication. Lingle v. Haw. Gov't Emplovees Ass'n, 107 HawaiU_178, 186, 111 P.3d 587, 595 (2005) (emphasis added, citations and brackets omitted, format altered). As 99-151 was dismissed with prejudice after settlement, and there was no final judgment on the merits, Judge Nakamura's rulings have no collateral estoppel effect. See also McLellan v. Atchison 1ns. Agency, lnc., 81 Hawafi 62, 69, 912 P.2d 559, 569 (App. l996) (col1ateral estoppel did not apply to preclude the present action because the prior case was dismissed based on a stipulated settlement and the issues in question were not actually litigated and decided); cf. ln re Dowsett Trust, 7 Haw. App. 640, 645, 791 P.2d 398, 402-03 (1990) (stipulation of dismissal with prejudice constitutes a final judgment on the merits for the purpose of res judicata though not for the purpose of collateral estoppel; all elements of res judicata must be satisfied for doctrine to apply). 32 FOR PUBLICATION IN WEST'S HAWAI°I REPORTS AND PACIFIC REPORTER l.8, l.9, possibly l.lO, l.13, l.l5(f}{4), possibly 1.l6, ?.“ possibly 3.3, 4.1, £.3, and 8.4 of the HRPC. Under HRPC Rule l.7(b), for example: A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and l\$ the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. The comments section of Rule 1.7 recommend that "[i]f such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation." There is a genuine issue of material fact regarding whether Roehrig's representation of George was materially limited by the responsibility he undertook to Carol and/or Jack's Tours, when he purportedly became a stakeholder or trustee for the stock certificates. 1n a declaration, George attested that he learned that Roehrig and Carol were having ongoing communications for the first time at an October 6, 1998 meeting with Roehrig. George further states that "[a]t no time did Roehrig ever receive any waiver of conflict of interest from me to talk to a clear adversary and 1 did not approve at anytime of Roehrig's actions." Finally, we recognize that violation of the HRPC does not, per se, equate liability in tort or contract. §ee, §;g;, HRPC, Scope, I 6 ("Violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached."). However, as the supreme court noted in Delmonte v. State Farm Fire & Cas. Co., 90 HawaiU,39, 54 n.l2, 975 P.2d 1159, 1174 n.12 (l999) (citations and internal quotation marks omitted): 33 F()R PUBLICA'I`ION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REP()R'I`ER §T}he requirements of the HRPC are at least relevant to a determination of the duty owed by an attorney to his or her client. Given the potential consequences of their violation 1 and the fundamental nature of their purpose, it would not be logical or reasonable to say that the Bar Rules, in general, do not play a role in shaping the care and skill ordinarily exercised by attorneys practicing law. There are genuine issues of material fact concerning whether Roehrig's communications with Carol constituted legal advice - §;g;, whether Carol should have sought changes to the 97- 402 and 97-471 settlements and whether Carol should "sit tight" until after the escrow closed - therefore an adverse representation, Roehrig also held himself out as attorney for Jack's Tours, which arguably required disclosures to George regarding the implications of common representation, consultation and consent. §§e HRPC Rule l.7(b)(2). Accordingly, we conclude that summary judgment on the HRPC was properly granted in part only with respect to the allegations involving Roehrig's March 1999 affidavits and April 1999 hearing testimony. ln all other respects, there are genuine issues of material fact and the Circuit Court erred in granting Roehrig’s motion for summary judgment on the HRPC. D. Roehrig's Motion for Summarv Judgment on the Bvlaws Roehrig's motion for summary judgment on the Bylaws, like his motion for summary judgment on the HRPC, did not seek summary judgment by reference to any particular cause of action. lnstead, in this motion, Roehrig argued that: (1) all of George's claims against Roehrig are based on the premise that George would have been the majority shareholder in Jack's Tours, but for Roehrig’s breaches of his duties to George; (2) the Bylaws of Jack's Tours required its directors’ consent to any transfer of Raymond's shares; (3) two of the directors, Carol and Troy, consented only to the transfer of Raymond‘s shares to Jack's Tours or its remaining shareholders as approved by its board of directors; and (4) therefore, George was never legally entitled to 34 FOR PUBLICATION IN WEST’S HAWAI°I REP()RTS AND PACIFIC REPORTER receive all of Raymond's shares and, accordingly, suffered no damages as a result of Roehrig's breach, if any. fn opposition to this summary judgment motion, George argued Roehrig "did not do his homework" regarding the Bylaws and that his interpretation of the Bylaws, and his representation of George in conjunction therewith, fell below the standard of diligence and care that Roehrig owed to his client. The critical section of the Jack's Tours Bylaws, Section 5.O5(a),3V provides in relevant part: U) ECTlON 5.05 RESTRlCTlONS CN TRANSFERS. (a) The shares of stock of this corporation shall not be transferable or assignable or be the subject of sale until first offered in writing to the Board of Directors of the corporation for purchase at the book value as of date of offer. In determining the book value, the value of good will or firm name shall be included only to the extent as carried in the books of the corporation. The Board of Directors shall determine whether to purchase it in the corporate name thirty (30) days after date of offer. If said offer is refused by' the Board of Directors, then the said shares of stock shall be offered by the Board of Directors upon such terms as the Board of Directors may determine to a person or persons they may select, which offer shall be open for sixty (60) days from the date of refusal by the Board of Directors. lf there be no acceptance by the offeree or offerees within the said sixty (60) day period, then the said shares of stock may be transferred, assigned or sold by the shareholder for a period of sixty (60) days thereafter. lf the said shares are not transferred, assigned or sold within the last sixty (60) day period, then the said shares must again be offered to the Board of Directors and the procedure set forth herein be repeated before the said shares may be transferred, assigned, cr sold. Notwithstanding the provisions of this Section, the Shareholders may transfer and assign their interests in any of the Shares to themselves and their spouses, descendants, or trusts for the benefit of such persons (Family Assignees) without making the offers to sell the Shares provided in this Agreement. lf the Shares are so transferred, the shares shall remain subject to all the terms and provisions of this Agreement. ¥/ While other parts of the Bylaws are arguably relevant to George’s claims that Roehrig's representation of George in conjunction with the structure and implementation of the settlement of 97~402 and 97-47l, and the events thereafter, fell below the reasonable standard of care, skill, and diligence which must be exercised by an attorney, in light of our ruling regarding Section 5.05(a) and the scope of our review, we need not consider them. 35 FOR PUBLICAT!ON IN VWEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER The crux of George's argument in response to the summary judgment motion was that "George was represented by Roehrig, who had a responsibility to make certain that he understood all the requirements necessary in order to have Raymond and Leslie Miyashiro's shares transferred to George. That included reading the By-laws. . . ." George further argued that consent of the Jack's Tours directors was not required for intra~family transfers, and that Roehrig's assumption of a position to the contrary was adverse to his client and fell below the standard of care Roehrig owed to George. We need not reach the issue of George's interpretation of the Bylaws. This was Roehrig's motion for summary judgment. The motion hinged on Roehrig's argument that, as a matter of law, the Bylaws of Jack's Tours required its directors' consent to any transfer of Raymond's shares. Nowhere in Section 5.05(a) is there any statement whatsoever that directors‘ consent is required for a transfer of shares of stock. lnstead, Section 5.05(a) of the Jack's Tours Bylaws sets forth a specific procedure whereby stock in Jack's Tours may be transferred, assigned or sold. This procedure can be summarized as follows: Step l: The stock must be offered to the board of directors for purchase at book value in the corporate name. The board has thirty days to buy the stock. Step 2: If the board does not buy the stock, the board shall offer the stock to a person or persons they may select. That offer stays open for sixty days. Step 3: lf there is no acceptance of the board‘s offer, the shareholder then may transfer, assign or sell the stock. The shareholder has sixty days to complete this transaction. Step 4: lf the shareholder transaction is not completed within sixty days, the shares must again be offered to 36 FOR PUBLICATION IN WEST'S HAWAI‘I REP()RTS AND PACIFIC REPORTER the board of directors and steps l, 2, and 3 are repeated. Bylaws Section 5.05( § requires that these steps be 5 a (a), the directors of Jack's Tours ‘... followed. Under Section o. had no right to simply approve, reject, or modify the terms of / Raymond's transfer of stock to George.5- Accordingly, we reject Roehrig‘s argument that, as a matter of law, the Bylaws required directors‘ consent to the transfer of Raymond's shares to George. we conclude that the Circuit Court erred in granting Roehrig's motion for summary judgment on the Bylaws. E. Roehrig's Motion for Summary Judgment on George's Conspiracy Claims ln count 5 of the Complaint, George alleges that Roehrig, Carol and Jeff participated in a conspiracy to defraud George. ln addition to incorporating by reference his other factual allegations, the conspiracy to defraud cause of action alleges: a. The Defendants were each communicating with one and another, from in or about June 1998 through April 1999 and did so, all with a view to devising a plan, whereby Carol, Jeff and Troy would ultimately receive a controlling interest of the outstanding shares in JACKS TOURS; b. All parties to the conspiracy concealed their specific intent to devise a plan whereby George would be divested of not only his 28% but also the 28% of JACKS TOURS shares which George was buying from Raymond and Leslie; c. The nature of the action of the Defendants to this cause of action constitutes scienter in that it is clear from the overt, wanton, and malicious conduct of the Defendants said actions were all designed to divest George of his stock ownership; d. The Defendant attorneys, by improperly acquiring possession of Share Certificate Nos. 125 & l26, did so to further the intent of the conspiracy to take control of JACK'S TOURS from George; e. As a consequence of the actions of the conspirators, George has sustained substantial pecuniary damages, in an amount to be proved at trial; §/ While various alternative scenarios for the transfer of Raymond's shares were possible within the terms of the Jack's Tours Bylaws, none of them are before this court. 37 FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER The conduct of the conspirators was willful, wanton, and engaged in with callous disregard for the rights and sensibilities of George and George is entitled to an award of punitive damages. (Emphasis as appears in the Complaint.) The Hawaid_Supreme Court has defined civil conspiracy as the "combination of two or more persons or entities by concerted action to accomplish a criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means." Robert's Haw. Sch. Bus, lnc. v. Laupahoehoe Transp. Co., 9l HawaiU_224, 252 n.28, 982 P.2d 853, 881 n.28 (l999) (emphasis added), superseded by statute on other grounds as stated in HawaiH.Med. Ass'n v. Hawafi Med. Serv. Ass'n, lnc., ll3 HawaiU.77, l48 P.3d ll79 (2006).» The supreme court explained that "[c]ivil conspiracy does not alone constitute a claim for relief." ld; at 260 n.44, 982 P.2d at 889 n.44. ln other words, concerted action is not enough. A civil conspiracy claim must include either that the alleged conspirators had a criminal or unlawful purpose for their concerted action or that the alleged conspirators used criminal or unlawful means to accomplish a lawful objective. Here, George alleges that Roehrig conspired with Carol and Jeff to defraud him. The elements of fraud are: (l) false representations made by the defendant; (2) with knowledge of their falsity (or without knowledge of their truth or falsity); (3) in contemplation of plaintiff's reliance upon them; and (4) plaintiff's detrimental reliance. See, e.q., Hawaii's Thousand Friends v. Anderson, 70 Haw. 276, 286, 768 P.2d l293, l30l (l989).Y/ ¥/ Section 551 of the Restatement (Second) of Torts also addresses liability for wrongful non-disclosure, or fraud by omission: (l) One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is (continued...) 38 FOR PUBLICATI()N IN WES'I"S HAWAI‘I REPORTS AND PACIFIC REPORTER After reviewing all of George's arguments and evidence regarding the conspiracy claim, including those presented in response to Roehrig’s summary judgment motion, in George’s appellate briefs, and at oral argument, there appears to be no evidence of a representation or misrepresentation that George relied upon to his detriment. The communications between Roehrig and Carol, even if they constituted a breach of Roehrig's duties to his client, were professional malpractice, not fraud. Roehrig, arguably wrongfully, took on the role of stakeholder of the stock certificates and refused to turn them over to his client. however, George has failed to identify representations made by Roehrig, Jeff, and/or Carol to induce George to agree to Roehrig's assumption of the stakeholder role. Instead, George alleges that he did not agree to Roehrig holding the stock certificates. As George rejected Roehrig's role as stakeholder, he cannot be §/(...continued) subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in guestion. (2) One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated, (a) matters known to him that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them[.] However, George has failed to adduce any evidence that, for example, prior to the settlement in 97-402 and 97-47l, Roehrig conspired with Carol and/or Jeff to misrepresent Carol's consent to the transfer of Raymond's shares of stock in Jack's Tours to GeQrge. On the contrary, George has adduced evidence that Carol orally consented to the transfer, that Carol's consent was not reduced to writing before the settlement was placed on the record, and that Carol changed her mind after the settlement was recorded. Although we have concluded that the Bylaws do not require director consent, had the directors effectively consented to the transfer of Raymond‘s shares to George, it appears that this dispute would not have arisen. Nevertheless, there is no evidence in the record that material information was withheld from George prior to the settlement. George's conspiracy claim is not supported by any evidence of fraud by omission. 39 FOR PUBLICATION IN \VEST'S HAWAI‘I REPORTS AND PACIFIC REPOR'I`ER (T arguing that he relied on representations that induced aim o agree to this arrangement. ln short, George's vague allegations of fraud and conspiracy are not legally sufficient. George failed to adduce evidence supporting each of the elements of an underlying criminal or unlawful purpose or means. Therefore, we conclude that the Circuit Court did not err in granting Roehrig's summary judgment motion on George's conspiracy claim. F. Roehrig's Motion for Summarv Judgment on Embezzlement and Breach of Fiduciarv Duty Roehrig's motion for summary judgment based on George's allegedly admitted embezzlement and breach of fiduciary duty, like his motion for summary judgment on the HRPC and on the Bylaws, did not seek summary judgment by reference to any particular cause of action. Instead, in this motion, Roehrig argued that all of George's alleged injuries and damages were caused by George's own conduct - his allegedly admitted embezzlement from Jack's Tours and breach of fiduciary duty, presumably his duty to the other shareholders. Roehrig's motion was quite brief, the entire argument was stated as follows: George Miyashiro admitted that while he was President of Jack's Tours, lnc., he had the corporation .§/ George's trial expert, Thomas Ueno, co~authored a report which stated that had been embezzled from the corporation. Had George not settled the Jack's Tours, lnc. lawsuit (Civil No. 99~l5l), he would ultimately have lost the presidency of the corporation, his directorship, and his stock in the company, and become liable to the corporation for his misconduct. None of this was the result of any act or omission of Stanley H. Roehrig. In a legal malpractice action, "where reasonable persons would not dispute the absence of causality . . . the court may take the decision from the jury and treat it as a question of law." Accordingly, Roehrig is entitled to summary judgment in his favor and against George on all claims. (Footnotes, citation, and brackets omitted.)3W §/ The allegedly admitted actions of embezzlement and breach of fiduciary duty were blacked out pursuant to a protective order. B/ Roehrig substantially and substantively expands this no-causation argument in his appellate brief, arguing: (l) the primary reason George (continued...) 40 FOR PUBLICATION IN WEST‘S HAWAFI REPORTS AND PACIFIC REPORTER On appeal, as in the court below, George argues that there were disputed issues of material fact regarding whether George embezzled money from Jack's Tours or breached a fiduciary duty. we agree. We begin by reviewing the meaning of embezzlement. Black’s Law Dictionary states: The elements of [embezzlement] are that there must be a relationship such as that of employment or agency between the owner of the money and the defendant, the money alleged to have been embezzled must have come into the possession of the defendant by virtue of that relationship and there must be an intentional or fraudulent appropriation or conversion of the money. 5/(...continued) settled 99-l5l was to avoid further discovery of his misdeeds; (2) George caused his own losses related to his interest in Jack‘s Tours when he settled 99-l5l; (3) when the judge in 97~402 ordered Roehrig to turn the stock certificates over to George, the causal link between Roehrig's actions and George's damages was broken; (4) Judge Nakamura caused Roehrig to testify at the April l999 hearing in 99-l5l; (5) Roehrig did not cause Carol's change of position regarding her consent to Raymond's transfer of the stock to George; (6) Roehrig's failure to assert promissory estoppel against Carol either was not malpractice or otherwise did not matter, under the circumstances of the case; and (7) George's damages are that he did not get away with fraud, which is not a legally cognizable basis for damages, Basically, Roehrig argues that we should affirm the summary judgment based on George's allegedly admitted embezzlement and breach of fiduciary duty on different grounds than presented in the motion. lt is not the role of this court to entertain new summary judgment motions on appeal. lndeed, even if we were to consider affirming this particular summary judgment order on "alternate grounds," it appears from the record that genuine issues of material fact exist regarding additional reasons ##l~3 & 6. Although we agree with the premise of additional reason #4, that Judge Nakamura caused Roehrig to testify, this is only a limited part of Roehrig's alleged breach of his duties to George and is addressed by this court's affirmance in part of the summary judgment on the HRPC. Similarly, there appears to be genuine issues of material and disputed facts surrounding Carol's withdrawal of her consent to the stock transfer to George (additional reason #5) and, as discussed in conjunction with this court's ruling on the summary judgment on the Bylaws, genuine issues of material fact as to whether Roehrig's legal services fell below the standard of care owed to George in conjunction with the corporate approval issues related to the settlements in 97-402 and 97-47l. Finally, regarding additional reason #7, we agree that l~ did-not-get_away~with-fraud is not a legally cognizable basis for damages. However, it appears, inter alia, that there was substantial overlap between the embezzlement claims brought against George in 97-402, which were dismissed with prejudice, and the embezzlement claims brought against George in 99-l5l. Issues related to the 99~l5l suit, evidence in the record of this case, and the reasonable inferences therefrom, raise questions of law not presented to either the Circuit Court or this court, and raise genuine issues of material fact regarding George's reasons for and the impact of the settlement of 99-l5l on George's claims for damages. 41 a v §Q;QgQgy, 86 Hawai‘i l83, 190 n.5, 948 P.2d 6G4, 611 n.5 (App. FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER BLmnFs LmvfEcrnmARY 522 (6th ed. 1990), cited in St te l997). jIt is undisputed that money belonging to Jack’s Tours came into George's possession. The dispute in this case concerns whether there was an intentional or fraudulent appropriation ord conversion of that money. Roehrig presented expert testimony that over $1.3 million dollars had been embezzled from Jack's Tours over a number of years. George presented excerpts of testimony from the same experts, wherein the experts stated that it was unclear who took the moneys or received the moneys. George's expert witness testified, inter alia, that "[w]e did not find any evidence of embezzlement by George[.]" In a sworn declaration, George denied embezzling money from Jack's Tours and averred that he was advanced cash from Jack's Tours, a twelve-million-a~year business, on a recurring basis for the purpose of "wining and dining" tour agents. A party that moves for summary judgment has the burden "to show the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitles the moving party to judgment as a matter of law." Jou v. Dai-Tokyo Roval State lns. Co., 116 HawaiH_l59, l64, 172 P.3d 47l, 476 (2007) (block format and citation omitted). The burden has two components: First, the moving party has the burden of producing support for its claim that: (l) no genuine issue of material facts exists with respect to the essential elements of the claim or defense which the motion seeks to establish or which the motion questions; and (2) based on the undisputed facts, it is entitled to summary judgment as a matter of law. Only when the moving party satisfies its initial burden of production does the burden shift to the non-moving party to respond to the motion for summary judgment and demonstrate specific facts, as opposed to general allegations, that present a genuine issue worthy of trial. Second, the moving party bears the ultimate burden of persuasion. This burden always remains with the moving party and requires the moving party to convince the court that no genuine issue of material fact exists and that the moving 42 FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER part {sicj is entii:le;';’ law. ld; (guoting French v. Hawafi Piz2a Hut, lnc., 105 Hawafi §62, 470, 99 P.3d 1046, 1054 (2004)). Even if we were inclined to view Roehrig's evidence more favorably than George's, we are reviewing the entry of summary judgment on this issue. lt appears from the record of this case that genuine issues of material fact exist on this issue. lndeed, even if George had misappropriated money from Jack's Tours, it does not appear from the record that he necessarily would have been removed as president of the company and otherwise would have been divested of his interest in the company. We cannot conclude, as a matter of law, that there is a complete absence of causality between Roehrig‘s alleged breaches and the damages allegedly suffered by George. For these reasons, we conclude that the Circuit Court erred in granting summary judgment based on embezzlement and breach of fiduciary duty. G. Attorneys'»Fees and Costs ln light of our rulings on the summary judgment orders and the remand of the case for a trial on the merits of George's remaining claims, we vacate the Circuit Court's April 17, 2007 order awarding RRWH, Roehrig, and Hara attorneys' fees and costs. Accordingly, we will not otherwise address the issues and arguments related to the award of attorneys' fees and costs. V. CONCLUSlON For the foregoing reasons, the Circuit Court's April 24, 2007 Second Amended Final Judgment is affirmed in part and vacated 43 FOR PUBLICA'I`ION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REP()RTER in part. we remand this case to the Circuit Court for further proceedings consistent with this 0pinion. David J. Gierlach for Plaintiff~Appel1ant Peter Van Name Esser; Keith K. Hiraoka (Roeca, Louie & Hiraoka) and Brian J. De Lima (Crudele & De Lima) with him on the briefs for Defendants-Appellees Roehrig, Roehrig, Wilson & Hara, Stanley H. Roehrig and Glenn S. Hara Diana L. Van De Car for Defendant-Appellee Title Guaranty Escrow Services, lnc. NO. 28395; GEORGE MIYASHIRO vs. ROEHRIG, ROEHRlG, WlLSON & HARA; STANLEY H. ROEHR1G, Attorney at Law, ALC; GLENN HARA, Attorney at Law; CAROL MlYASHIRO; TROY MlYASHlRO; TlTLE GUARANTY CO.; and DOE DEFENDANTS 1-100 ' Opinion of the Court by Leonard, Jr. - March l9, 2010 44 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/871041. Public record. Not legal advice.